The practices of legal theory



Publication Details

Leiboff, M. (2014). The practices of legal theory. In M. Leiboff and M. Thomas (Eds.), Legal Theories: Contexts and Practices (pp. 91-122). Pyrmont, NSW, Australia: Thomson Reuters.

Additional Publication Information

ISBN: 9780455231051


When we think about practice in law, we tend to mean something quite specific - the methods by which we 'do' law, practically. The day-to-day nuts and bolts of getting legal work done, following procedural rules, reading and interpreting cases and legislation, as well as appearing in court and all of its associated paraphernalia, argumentation, and theatrical presence. The kinds of practices to be explored in this chapter are also intimately connected to the practice of law, 1 but not because we are consciously aware of their existence - we may have no idea how much they influence and help us 'do' or carry out our work as lawyers. In this chapter, we want to consider these practices in two ways. The first explores how legal theory is used in law, to establish the ground rules or frameworks that guide the reasoning of the courts and to crack open boilerplate precedent, where the law goes against you, and where the law clings to old and outdated ideas. This chapter is designed to help find when legal theory has been incorporated into judgments and the texts oflaw. 2 We will tease out the remnant strands of the DNA of legal theory located deep within the doctrines and principles of the law. We will find that it is often so deeply hidden that it is assumed to be part of the law itself- ie, that no trace of the theory can be seen, and all that remains are rules and principles. We will find out how we can trace this lost DNA through the cases. We also call this the 'hidden' or 'secret' language of the law, because unless we know what a legal theory says, we will never know when the judges are using theoretical concepts to frame their reasoning, or when counsel uses theory to construct an argument in a novel case .

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